Tuesday, April 10, 2012

More fun with forensics

So, let's pretend that you're the head of a state forensic sciences board and you receive a complaint from an analyst at a laboratory that is "certified" by the American Society of Laboratory Directors. The complaint alleges that the lab has been using chemicals after the expiration dates on the bottles, that the lab is using outdated protocols and that analysts have been conducting tests without wearing gloves (among others).

Do you:
(A) Have the forensic sciences board look into the allegations?
(B) Have the ASLD look into the allegations that the lab they "certified" is not quite up to snuff? or
(C) Book a tee time.
Now, let's assume that the state board chose Option B and that now you're one of the higher-ups at ASLD. When the complaint is referred to your office, do you:
(A) Send out an audit team to conduct an inspection of the facility?
(B) Interview the person making the complaint?
(C) Pick up the phone and call up the head of the lab and ask him some questions? or
(D) Get a bunch of dollar bills and head over to the nearest strip club for lunch?
Stay with me here. Now let's say you've decided the complaint was without merit. You need to create a paper trail that shows you did something with the complaint. Do you:
(A) Release the report to the public?
(B) Quietly release the report to the forensics board? or
(C) Worry about the report after a trip across the Red River to a casino in Oklahoma?
Of course we all know the answers to the questions. This is a lab that runs a whole bunch of tests for the benefit of prosecutors and we certainly don't want to do anything that's going to cause the prosecutors any problems. We certainly can't expect them to conclude that the lab wasn't operating properly and that the results of any tests might be compromised, can we?

ASLD took over 13 months to complete their "investigation." Their investigation consisted of telephone interviews with managers at SWIFS (Southwest Institute of Forensic Sciences) in Dallas. Not once did anyone from ASLD contact the individual who made the complaint.

After ASLD's report was issued, it took the Texas Forensic Sciences Commission another 13 months to forward the findings to the individual who made the complaint. As a result of the "investigation" by the body who had accredited the lab two years prior to the complaint, the TFSC found the complaint to be groundless.

In addition, according to my anonymous source, two members of the TFSC paid ASLD/LAB for accreditation of the labs they operated - Nizam Peerwani and Sarah Kerrigan.

Dr. Peerwani is the chief medical examiner for Tarrant, Denton, Johnson and Parker Counties.  Dr. Kerrigan is the director of the Sam Houston Regional Crime Lab in The Woodlands. In addition, Dr. Peerwani has entered into financial contracts for forensic services from SWIFS, as has Arthur Eisenberg of the University of North Texas Health Science Center.

Now I'm not accusing anyone of a conflict of interest in this matter - but there is, at least, the appearance that something might not be on the up-and-up when members of the state forensics board have outside business dealings with the organization that accredits and investigates crime lab facilities in Texas. It raises a few more eyebrows when at least two members of the board have financial dealings with the lab being investigated.

Dallas SWIFS Investigative Report - Wyckoff-1-2


Anonymous said...

There are several inaccuracies in your post.

You state that Peerwani and Eisenberg "entered into financial contracts for forensic services from SWIFS."

This is statement is incorrect.

The contracts referred to were with Dallas County for the providing of services to divisions of the County separate from the laboratory. In the case of Peerwani, the contract was to provide an independent review of autopsy findings related to a civil lawsuit against the County arising from an in-custody death. In the case of Eisenberg, the contract was to provide certain testing services to the District Attorney's office.

In neither case did the contract involve the receiving of services from or the providing of services to the laboratory.

The County is the parent organization for the laboratory, so it is not unreasonable to consider conflict of interest issues related to the contracts.

However, by stating incorrectly that these contracts were between the laboratory and these individuals, the impression is given that you are interested in manufacturing an elevated appearance of conflict of interest through the use of misinformation, rather than accurately considering the circumstances as they actually were.

You also failed to mention that Peerwani and Eisenberg both recused themselves from voting upon or discussing this complaint in the Commission's September 2011 meeting. This again gives the impression that you are interested in manufacturing an elevated appearance of conflict of interest, rather than accurately considering the circumstances as they actually were.

Paul B. Kennedy said...

Thank you for your comments.

The point remains that members of the commission who were to decide whether or not the testing procedures at SWIFS were up to snuff were involved in contracts in which SWIFS was to provide forensic services.

However you want to look at it, there is a conflict of interest. It certainly wouldn't do for the crime lab providing the services to have been reprimanded for shoddy lab practices, would it?

Anonymous said...

Again, the contracts were for Peerwani and Eisenberg to provide services to Dallas County. The contracts didn't involve SWIFS providing any forensic services to anyone. Copies of the Dallas County court orders for these contracts have been posted online by your anonymous contact. The fact that Eisenberg and Peerwani recused themselves from the decision about this complaint would indicate they were in agreement with you that there was an appearance of a conflict of interest. But recusal is the generally accepted way of dealing with apparent conflicts of interest, so it's not obvious why it would not be an acceptable response in this case, especially since the remaining Commission (consisting of the members who did not have a conflict of interest) unanimously voted to dismiss the complaint.

There is really no way to successfully argue that conflict of interest played a role in this decision of the commission. Individuals who disagree with the decision might be tempted to raise the specter of conflict of interest. But this is a bogeyman argument which does survive even the most casual evaluation. The bottom line was and is that the Commission as a whole did not find this complaint (and by extension the complainant) specific or credible, which are the terms used by the Commission in its letter to the complainant following the September 2011 meeting. This letter has been posted online by Texas Watchdog.

This language (specific and credible) is significant.

When a complaint points to a specific case or cases and says, then this provides sufficient detail and specificity for an investigation.

However, in this instance there was a complainant who had worked for months in a laboratory and had been involved in the processing of perhaps hundreds of cases, and had observed the processing of perhaps hundreds of more cases. But the complainant could not point to a single, specific case and say that there was an made error in that case.

Really, who in the world is going to find this complaint credible when there is not a single case offered up for investigation? So it's not surprising, given the lack of credibility of the complaint, that neither the Commission nor ASCLD would find sufficient cause to expend thousands of dollars to perform a site visit. It's also not surprising that the ASCLD report to the Commission would summarize by saying that the investigation suggested that "the overall complaint did not arise from objective review of the processes going onwithin SWIFS, but very likely arose out of a desire for retaliation against SWIFS."

Anonymous said...

Anony 7:00/6:30-

One could ask why didn't Eisenberg recuse himself immediately after the contract was established? He waited over a year to finally recuse himself.

And why didn't Peerwani recuse himself immediately after his contract was established (to specifically work with Dr. Jeffrey Barnard, the Director of SWIFS Crime Lab)?

During the April 14-15 FSC meeting, neither recused themselves even though both had contracts with Dallas County at that time. Why? Because they comprised 2/3 of the 3-member Complaint Screening Committee. Recusal would have resulted in less than a quorum for voting and actions. Did they finally reveal their contracts with SWIFS to the public? Nope.

Moreover, if Peerwani and Eisenberg were of the opinion that there was no conflict of interest, then why did they recuse themselves during the September FSC meeting? And, were past decisions and actions by the FSC taken into consideration? Nope.

And why didn't the FSC decide to consult with the Texas Ethics Commission or the Attorney General regarding these conflicts of interest? Because they didn't want to know that they violated the law, perhaps?

And on last thing, Anony, as you state, "...The bottom line was and is that the Commission as a whole did not find this complaint (and by extension the complainant) specific or credible..."

Funny thing is...the SWIFS lab supervisor herself admitted negligence during her expert witness testimony in December 2009. It's difficult to argue a credibility issue about the complainant when the crime lab admits it was faulty.